- Ciarlante v. Brown & Williamson Tobacco Corp., 143 F.3d 139 (3d Cir. 1998).
Prior to the pandemic, remote work was mainly considered in the context of a traveling employee, i.e., truck drivers, train conductors, or traveling salespeople. Once the federal WARN Act took effective, there was uncertainty whether traveling employees were covered by the WARN Act. Ten years after the introduction of the WARN Act, the Third Circuit Court of Appeals considered whether traveling salespeople are considered employees at a “single site of employment” if their primary role is to work remotely. Ciarlante, 143 F.3d at 141.
The underlying claim of the issue evolved around uncertainty about what a traveling employee’s “home base” is defined as. Id. The WARN Act did not explicitly define what constitutes a “home base” or “single site of employment.” Id. at 145. Therefore, Congress authorized the Department of Labor (“DOL”) to promulgate regulations interpreting the WARN Act. Id. The applicable DOL regulation stated:
“For workers whose primary duties require travel from point to point, who are outstationed, or whose primary duties involve work outside any of the employer’s regular employment sites (e.g., railroad workers, bus drivers, salespersons), the single site of employment to which they are assigned as their home base, from which their work is assigned, or to which they report will be the single site in which they are covered for WARN purposes.”
Id. (quoting 20 C.F.R. § 639.3(i)(6) (1989)).
The salespeople “worked out of their cars” and spent a majority of their time traveling to assist “customers within their geographical district.” Id. at 146. The salespeople “did not physically visit Chester, Virginia [i.e., their single site of employment] in the normal course of business.” Id. They merely “telephone[d] the Chester site on a daily basis to check messages and complete administrative tasks.” Id.
Defendants argue that “an employee’s assigned home base is the place from which the employee physically works on a regular basis.” Id. (internal quotations marks omitted) (emphasis added). In contract, the salespeople “focus less on the employee’s whereabouts than on the physical location of the employer’s major contacts with its employee,” arguing that an employee’s home based “must be a fixed physical building or structure … owned by the employer.” Id. Because the salespeople exclusively worked from their cars and homes, they contend the “Chester center must by default be considered the employees’ home base.” Id. (internal quotations marks omitted).
The Third Circuit Court agreed with Defendant’s definition. A traveling, or remote, employee’s “home base must at a minimum be a location at which the employee is physically present at some point during a typical business trip.” Id. (internal quotations marks omitted). Additionally, “the term home base refers not to the physical based of the employer’s operations … but rather to the physical base of the employee.” Id. (internal quotations marks omitted).
Two prior Sixth Circuit cases defined “home base” in a similar manner: Teamstars Local Union 413 v. Driver’s, Inc., 101 F.3d 1107, 1110 (6th Cir. 1996) and Wiltz v. M/G Transport Services, Inc., 128 F.3d 957, 961-62 (6th Cir. 1997). Id. In both Teamstars and Wiltz, “the employees’ home bases were the sites where they began and ended their business trips.” Id. at 147.
- Landgrave v. ForTec Med., Inc., 581 F. Supp. 3d 804 (W.D. Tex. 2022).
In a recent decision, the Texas Western District Court utilized the Ciarlante definition of “home base” when ruling that an employee who works exclusively from home is not covered by the Family & Medical Leave Act (“FMLA”). 29 U.S.C. § 2601, et seq. Landgrave, 581 F. Supp. 3d at 813.
Plaintiff Vanessa Landgrave alleged Defendant ForTec Medical, Inc (“ForTec”) failed to grant her leave, as allegedly required by the FMLA. 29 U.S.C. § 2601, et seq. Id. at 807. As a surgical laser technician, “Langrave was a remote employee, without a fixed worksite.” Id. In fact, Langrave never went to headquarters. Id.
The dispute in this case revolved around FMLA’s coverage for remote workers and the “defining [of] a worksite for the purpose of [remote worker’s FMLA] eligibility.” Id. at 809, 813. Under the FMLA, leave and employment protections are guaranteed to “eligible employees.” For eligibility requirements, the FMLA excludes “any employee of an employer who is employed at a work site where such employer employs less than 50 employees if the total number of employees employed by the employer within 75 miles of that work is less than 50.” Id. at 812 (quoting 29 U.S.C. § 2611(2)(B)). Furthermore, Further, “[a]n employee’s personal residence is not a worksite in the case of employees . . . who travel a sales territory and who generally leave to work and return from work to their personal residence, or employees who work at home, as under the concept of flexiplace or telecommuting.” Id. (quoting quoting 29 U.S.C. § 2611(2)(B)).
The Texas District Court highlights the Senate indication when passing the FMLA that “[t]he term ‘worksite’ is intended to be construed in the same manner as the term ‘single site of employment’ under the Worker Adjustment and Retraining Notification Act (“WARN”), 29 U.S.C. 2101(a)(3)(B), and regulations under that Act (20 CFR Part 639).” Id. at 813 (quoting Sen. Rep. No. 103-3, at 23 (1993)). Relying on the definition of “home base” construed by the Ciarlante court, the Texas District Court held Plaintiff could not establish eligibility since the Hudson headquarters were not Plaintiff’s home base. Id. (citing Ciarlante v. Brown & Williamson Tobacco Corp., 143 F.3d 139, 146 (3d Cir. 1998)).
The Texas District Court’s decision highlights the lack of protections afforded to remote workers. The growing reliance on remote work post-pandemic in conjunction with lack of protections for remote workers is a problem that courts and legislative bodies need to address. Although remote workers are generally offered rights determined by the state they reside in, this situation becomes much more complicated when remote workers travel and work from various locations across multiple states.
- Piroon v. Gen. Dynamic Info. Tech, Inc., 2022 U.S. Dist. LEXIS 21926 (E.D. Va. Feb. 7, 2022).
Without concrete guidelines, courts have been hesitant to grant definitive rulings on issues of remote workers in relation to where their “single site of employment” is.[1] This hesitation leaves remote workers vulnerable and with no clear idea of whether they can seek protections under the WARN Act. In fact, this could potentially deter workers from accepting remote positions if they are not 100% certain of the protections they are afforded under the law. This hesitation from the courts is illustrated in a recent class action lawsuit where the Virginia Eastern District Court “decline[d] to engage in a full merits-based analysis” of where a remote worker’s “single site of employment” would be. Piroon, 2022 U.S. Dist. LEXIS 21926at *35. In fact, the Court stated that other courts are free to “contemplate whether a “single site of employment” should be deemed where a business is headquartered and operated out of, even when employees travel across the county and service various contracts at different client sites.” Id. at *33.
Plaintiffs brought claims against Defendants General Dynamics Information Technology for their alleged violations of the federal WARN Act, 29 U.S.C. § 2101, et seq. The central issue in the case was “whether Plaintiffs and Putative Class Members can claim a ‘single site of employment’ under the WARN Act by relying on Department of Labor (“DOL”) regulations.” Id. at *3.
Defendant’s employees were “located in various locations across the country” and mainly worked from home. Id. at *9-10. In fact, the Plaintiffs “did not work at any site owned, occupied or controlled by [Defendants].” Id. at *11. Approximately 1,500 employees were terminated from the same location. at *13. Around 94% of the terminated employees were remote workers. Id. at *13-14.
The Virginia Court looked to the Fourth Circuit’s holding in Meson v. GATX Tech. Servs. Corp., 507 F.3d 803 (4th Cir. 2007) for guidance. In Meson, the Fourth Circuit held that Subpart 6 applies to “truly mobile workers, without a regular, fixed place of work,” including bus drivers and railroad workers, whose “jobs are characterized by travel and mobility.” Id. at *25-27 (quoting Meson, 507 F.3d at 809).
Plaintiffs assert that Defendant’s Fall Church office in Virginia is their “single site of employment,” not their home offices, and therefore they are entitled to WARN Act coverage. Id. at *27. Relying on Meson, the Plaintiffs highlight the following language in Defendant’s Flexible Work Location Policy to support the above claim:
“[E]mployees may work some or all of the workweek in a company-provided office setting, co-located with customers, or from an alternative location (generally the employee’s home).” Id. at *27-28. (emphasis added).
On the other hand, Defendants argue the definition of “truly mobile workers” under Meson does not apply to the case, and therefore “precludes the application of Subpart 6.” Id. at *32. They reason that “employees with travel responsibilities who maintain a regular fixed place of work (e.g., the employees’ home offices) cannot be deemed truly mobile under the Fourth Circuit’s test.” Id.
Ultimately, the Virginia District Court granted Plaintiffs’ motion for class certification and related relief. However, as mentioned earlier, they refused to administer a definitive ruling on what constitutes a “single site of employment” for remote workers. Courts hesitation to provide clear guidelines highlights the growing problem plaguing remote work, i.e., both employees and employers are left questioning what protections the WARN Act provides remote workers. Uncertainty can deter both employers from utilizing the remote workforce and employees from taking remote positions. With the rapid increase in remote and hybrid positions, courts will need to finally address this uncertainty in the imminent future.
[1] See Schmidt v. FCI Enters. LLC, No. 1:18-cv-01472, 2019 U.S. Dist. LEXIS 192579, 2019 WL 5748952 (E.D. Va. Nov. 5, 2019), rev’d Schmidt v. FCI Enters. LLC, 3 F.4th 95, 104 n.7 (4th Cir. 2021) (declining to address whether defendant’s headquarters were properly construed as the single site of employment).